to their knowledge, they rescinded said contract, and demanded a return of the money which had been paid by them to the said Loftus. That thereby they sustained actual damages in the total sum of $1,000. That all of the before-mentioned acts and representations of the said Loftus were deliberately, willfully, and maliciously done, with the express purpose and intent to defraud, swindle and injure the plaintiffs, and because thereof the plaintiffs were deceived and defrauded and injured, to their further damage in the sum of $10,000, as punitive or exemplary damages." The defendant Loftus answered by general demurrer and general denial. The case was tried before a jury, and on March 12, 1913, a verdict was returned in favor of the plaintiff, E. C. Sturgis, against the defendant for $744 actual damages and $5,000, exemplary damages. The jury returned their verdict in favor of the defendant against the plaintiff, Mrs. E. C. Sturgis, under a peremptory instruction of the court, after the court had determined that, as the suit was one to recover damages to the community estate, the wife was neither a necessary nor proper party. moving picture shows were a highly profit- | soon as the truth about said business came able and money-making business, which required no experience to run. That he exhibited to them a set of books representing that they contained a true and correct statement of all the receipts of both houses from on or about February 1, 1910, to April 5, 1910, and represented to them that the expenses of both of said theaters as a total usually varied from $150 to $200 a week, but never exceeded $250 a week, exclusive of rent. That, relying upon said representations and statements, they entered into a lease contract with said Loftus on April 9, 1910, by which they leased both of said negro moving picture shows for a period of 104 weeks, beginning with April 11, 1910, at a total rental of $250 per week. That, contemporaneously with the signing of said lease, they paid to the said Loftus the sum of $500; $250 being for a bonus or deposit to be retained by said Loftus to secure the performance by said Sturgis and wife of their part of said lease contract, and the other $250 being in payment of the first week's rent in advance for the week of April 11th to 17th. That on April 19th they paid Loftus $250 as rent for the week of April 18th to April 24th, and that on April 25th they paid him $250 as rent for the week Both of the plaintiffs testified to stateof April 25th to May 1st. That, following ments made to them by the defendant before the execution of said lease contract, they the contract of lease was executed of the took possession of said show houses and weekly receipts of each of the shows and the undertook to conduct the same, and con- weekly expenses of conducting them. Mrs. tinued in possession thereof until on or Sturgis testified that defendant showed her about May, 1910, when they were forced to what purported to be an account book showabandon said business. That all of the rep- ing the daily receipts of each of the shows, resentations on the part of the said Loftus which corroborated the statements made by in regard to said business and the conduct the defendant as to the amount of said rethereof, and the receipts and expenses of ceipts. Both plaintiffs testified that not withthe same, as well as the entries in said books standing they conducted said shows, after of account, were false and willful misrep- they took charge under their lease, in a careresentations, and were so known to the said ful and businesslike manner, and as advised Loftus at the time they were made, and by the defendant, the receipts were much less that they were made for the sole purpose than defendant had represented them to be, of inducing plaintiffs to enter into said con- and the necessary expenses were larger, and tract. That such business under the manage- the weekly net proceeds were insufficient to ment of said Loftus, or any other person, meet the amounts which they had agreed to had never paid any such returns as repre-pay defendant under their lease contract. sented by the entries in the said books of ac- The plaintiffs conducted the shows under counts, which was well known to Loftus at the time, and that said business had been operated at a loss by all of the previous lessees thereof. That the plaintiffs at all times managed and conducted said business in a wise, businesslike, and prudent manner, and they acted for the most part at the direction of the said Loftus in conducting said business until they discovered his fraud. That the false statements and representations made to them by Loftus became known to them only through their experience at his hands, after having paid said moneys above mentioned. That the damage incurred by them was the direct and proximate result of the conduct, false statements, and their lease from defendant from April 11 to May 10, 1910, when they refused to be longer bound by the lease and demanded of defendant a return of the amounts paid him. They were induced to make the lease contract by the statements made to them by the defendant of the profits of the business, and in making said lease contract relied wholly upon defendant's representations. In support of their claim that the representations made by the defendant were false, they proved by McKenzie, a witness in their behalf, that he was employed by defendant as an assistant in conducting the shows in question in March, 1910; that he took the money received at each of the shows daily to tries of these daily receipts in two small account books. In one of those books the amount of receipts was correctly entered, but false entries were made in the other showing the receipts to be larger than they were in fact. This witness described the books in which these entries were made; the incorrect or padded book, according to his statement, had a red cover, and the book with the correct entries had a stone colored canvas back. The defendant testified that he made no untrue statements to plaintiffs as to the receipts or expenses of the shows, and that the account book he showed them contained true and accurate entries of the receipts from said shows. He denied that he ever kept two account books or ever made a false entry of said receipts in any account book. It would serve no useful purpose to discuss the various assignments of error presented in appellant's brief. Most of the assignments are predicated upon the ruling of the trial court in admitting evidence over the objections of the defendant, or sustaining objections of plaintiffs to testimony offered by the defendant. [1] In regard to the evidence admitted over defendant's objection, some of it appears to us to be immaterial, and for that reason should not have been admitted, but it was not of a character calculated to influence the jury in determining the issues presented by the pleading, and its admission would not authorize a reversal of the judgment. [2,3] It was competent for. plaintiffs, in support of their allegations of fraud and misrepresentations made to them by defendant in regard to weekly amounts received by him from his shows, to prove similar misrepresentations made by defendant to other parties before and after the time such representations were made to plaintiffs, and also to prove, in corroboration of the testimony of the witness McKenzie as to the false account book kept by defendant, that others had seen and examined books kept by the defendant similar to the one described by McKenzie, which contained false entries of the amount of the receipts from said shows. [4] The testimony of McKenzie, to the effect that defendant had induced him to leave the state in order to prevent his testifying in this case was also admissible, as a circumstance tending to show that defendant was guilty of the charges made against him by McKenzie. [5] The seventh assignment of error is as follows: "The court erred in refusing to permit the defendant to read in evidence the seventh direct interrogatory propounded to defendant's witness F. R. Gooch, as follows, to wit: 'Please state why you quit the employ of the plaintiff, with whom you had the contract of employment, and state what you told said plaintiff, if anything, as to why you were quitting said employment. the answer thereto, as follows, to wit: 'The reason I quit the employ of Mr. Sturgis was because he knew absolutely nothing of the business he was engaged in, and would not let me handle same as I knew it must be handled to make a success of it. As soon as I took possession, and discovered that Sturgis had no force of character, and was being led by a negro woman named Nannie, and a negro man named Levi, I immediately went to E. C. Sturgis and made plain statement of facts, and told him that they would, in my opinion, rob him and break up his business, if he did not get rid of them at once, and I would not be responsible, as I had seen enough, and they would have to go or I would go, but he seemed to be in their control, and after much turmoil, I quit.' Which were excluded under the objection made by the plaintiff that the interrogatory called for a conclusion of the witness, and not a statement of fact, and because the same was irrelevant and immaterial, and that the answer stated a conclusion of the witness, and stated his reasons, without giving facts supporting them, and was irrelevant, immaterial, and not responsive." The evidence shows that, when plaintiff leased the shows from defendant, they employed the witness Gooch as manager of the business. He was experienced in the moving picture show and vaudeville theater business. Had been in the business for more than eight years, during which time he had run houses of this kind for himself and as manager for others. As before shown, there was a sharp conflict in the testimony upon the issue of whether defendant's representations to plaintiffs as to the amount of the weekly receipts from his shows were false. One of the strongest circumstances, tending to show that the representations were false, was the fact that the receipts, after plaintiffs took charge, were much less than defendant had represented them to be prior to that time, and both of the plaintiffs testified in effect that the shows were properly managed after they took charge, and there was no reason for any falling off in the receipts. We think the testimony of the witness Gooch set out in this assignment was admissible as tending to rebut plaintiffs' claim that the shows were properly managed and conducted, and to account for the diminution of the receipts. The statement of the witness as to how the business was conducted, and that he, an experienced manager of shows of this kind, was not allowed to direct how these shows should be carried on, and that plaintiff allowed the two negroes named to control the management of the business, were statement of facts a not conclusions. We think this portion of the testimony was material was not subject to the objections urged against it by the plaintiffs, and the court erred in sustaining said objections. follows: "The court erred in refusing to permit the defendant to read in evidence the tenth direct interrogatory propounded to defendant's witness F. R. Gooch, as follows, to wit: 'If you say that the defendant Loftus made a statement of the number and names of the performers and employés of said theaters, and the salaries paid to them, and the other operating expenses, then please state whether or not you afterwards found the statements so made by the defendant Loftus to be correct; and, if not, please state in what respect you found this statement to have been wrong'-together with the answer thereto, as follows, to wit: "The statement given Sturgis and myself by Loftus was absolutely correct and the guide I work byMr. Loftus misrepresenting nothing.' Which was excluded under the objection of the plaintiff that the same was irrelevant and immaterial, and a statement of the conclusion of the witness, and because there was not sufficient predicate in the deposition for this introduction, and the conclusion therein stated was not binding upon the plaintiff." One of the representations of the defendant alleged to be false by the plaintiffs was his statement as to the weekly expenses of conducting the shows. Plaintiff testified that these expenses were much greater than represented by defendant, and this was one of the grounds of recovery submitted to the jury by the charge of the court. In these dence would affect the weight of the testimony, but would not render it inadmissible. The assignment must be sustained. [9] The ninth assignment complains of the ruling of the court in sustaining objections of plaintiffs to the testimony of the witness Gooch that, after plaintiffs took charge of the shows, "the performers were dissatisfied, the report of the house being closed, and the confusion of the disorganization of the performers had a tendency to hurt business." It is clear that the conditions testified to by the witness would have a tendency to injure the business, and the existence of such conditions was a relevant fact which could be properly considered by the jury in rebuttal of plaintiffs' testimony that the shows were wisely and properly conducted while they had charge of them. For the reasons stated in discussing the seventh assignment, this testimony was material, and the court erred in sustaining plaintiff's objection thereto. For the errors indicated, the judgment of the court below is reversed, and the cause remanded. Reversed and remanded. GIBBONS v. ROSS et al. (No. 6704.) (Court of Civil Appeals of Texas. Galveston. March 18, 1914. On Motion for Rehearing May 4, 1914.) circumstances it is manifest that any evi-1. COURTS (§ 207*)—Court of CIVIL APPEALS dence tending to show the truth of defendant's statements to plaintiff of the expenses of conducting the shows was material. We think it equally clear that the testimony set out in this assignment tended to establish the truth of defendant's statements as to said expenses. We fail to see how the statement of the witness can be regarded as a mere conclusion, nor do we understand what is meant by the objection "that there was not sufficient predicate in the deposition for its introduction." [7] In the reply made to this assignment in appellees' brief it is contended that the evidence does not show that the witness was present when defendant made the statements to plaintiffs which induced them to execute the lease, and therefore he could not know what said statements were. From the testimony of E. C. Sturgis, it appears that Gooch was present when the lease was finally consummated, and there is nothing in the record tending to show that the witness did not know what statements were made by the defendant to Sturgis before the lease was executed. It is a fair inference from the testimony of the witness above set out that he was referring to the statements made by defendant before the lease was executed. [8] If there is evidence in the record tending to show that he did not and could not know what these statements were, such evi -JURISDICTION-INJUNCTION. Whenever it is necessary, in order to protect or enforce the jurisdiction of the Court of Civil Appeals, to preserve the status quo of the parties, such courts have jurisdiction to grant an injunction for that purpose. Cent. Dig. § 758; Dec. Dig. § 207.*] [Ed. Note.-For other cases, see Courts, 2. JUDGMENT (§ 405*)-EQUITABLE RELIEFIRREPARABLE INJURY. Where plaintiff's tenant had dispossessed one of the defendants, who was a tenant of the other, from the premises in controversy, and the latter had secured a judgment in an action of forcible entry and detainer, in which action plaintiff's superior title could not be relied upon, plaintiff is not entitled to a temporary injunction, in a suit in trespass to try title, to restrain the writ of restitution in the forcible entry action, without a showing that the issuance of such writ would work irreparable injury to plaintiff, or at least greater instrained from enforcing the judgment. jury than defendants would suffer by being re [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 766, 767; Dec. Dig. § 405.*] On Motion for Rehearing. JUDGMENT (§ 408*)-EQUITABLE RELIEF INSOLVENCY OF DEFENDANT. 3. Where it appeared that the defendant tenant, who was plaintiff in the former action, and who alone would be responsible for damages ment, although solvent, was not possessed of resulting from the enforcement of the judgsufficient property to respond in damages for the rental value of premises during the pendency of the suit in trespass to try title, while the defendants could be secured against any loss by an injunction bond, the balancing of conve For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe nience is in favor of the plaintiff, and a temporary injunction will be issued. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 772; Dec. Dig. § 408.*] 4. JUDGMENT (§ 451*)-EQUITABLE RELIEF DEFENSES-WRONGFUL ACTS OF PLAINTIFF. The fact that the plaintiff, in a suit in trespass to try title, had wrongfully entered upon the possession of the defendant, for which entry the defendant had secured a judgment in forcible entry and detainer, does not deprive the plaintiff of his right to a temporary injunction to restrain the enforcement of the forcible entry and detainer judgment; the rule of balancing of convenience in such a case being followed rather than the rule that he who comes in equity must come with clean hands. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 855; Dec. Dig. § 451.*] Appeal from District Court, Galveston County; Robert G. Street, Judge. Trespass to try title by J. T. Gibbons against J. H. Ross and others. From an order of the district court refusing plaintiff's prayer for a temporary injunction, plaintiff appeals. versed on rehearing, and judgment granting injunction rendered. Hutcheson & Hutcheson, of Houston, for appellant. Maco & Minor Stewart, of Galveston, for appellees. the pendency of said suit another suit of forcible entry and detainer involving the above property was filed against the said A. A. Kresse, tenant of the defendant, by Ira Bratton, as tenant of the defendant J. H. Ross, said suit being filed in the justice court of Galveston county, precinct No. 6, on or about the 1st day of October, 1913, and being cause No. 201 on the docket of said court. That the suit last mentioned was tried in the justice court, and from there appealed to the county court of Galveston county, Tex., and that judgment was rendered in said suit against the said A. A. Kresse, and in favor of the said Ira Bratton, for the possession of the 32-acre tract herein sued for, and that no appeal lies from said judgment of the county court by reason of the statutes of this state governing the remedy of forcible entry and detainer, and that the said Ira Bratton is about to secure the issuance of a writ of resRe-titution in said cause to dispossess the said A. A. Kresse, tenant of this plaintiff, and this plaintiff now states to the court that he has good record title to said entire 32-acre tract and is the lawful owner thereof, and that none of the defendants have any title or right of possession whatever thereto, so that plaintiff's tenant is legally entitled to the possession thereof, but that, under the law of forcible entry and detainer, this plaintiff's title cannot be introduced in evidence for the purpose of showing the right of said A. A. Kresse to possession, and this plaintiff cannot intervene in such suits and assert his title, so this plaintiff is without remedy in the event his tenant be dispossessed therefrom, and his tenant would have a right of action against him for damages if so dispossessed, and the said J. H. Ross and Ira Bratton are insolvent, and could not respond to this plaintiff in damages, although the said A. A. Kresse has taken possession of the said 32-acre tract under his lease with this plaintiff, and has constructed on said tract valua PLEASANTS, C. J. This appeal is from an order of the district court of Galveston county refusing appellant's prayer for a temporary injunction in a suit of trespass to try title and to remove cloud from title brought by appellant against the appellees. The land involved in the suit is described in the petition as a tract of "32 acres more or less, known and designated as lot 23 in subdivision C of the S. F. Austin and M. Muldoon grants of land in Galveston county, Texas, according to plat prepared by R. W. Lutterell for J. C. League in December, 1893." The defendants in the suit are J. H. Ross, Ira Bratton, and R. McGregor. In addition to the usual allegations in a suit of trespass to try title, the petition specially alleges facts relied on by plaintiff to show that the title asserted by defendants, who | ble improvements, including two silos for the claim under a common source, is invalid; the facts so alleged being sufficient to defeat defendants' claim of title. The allegations of the petition, upon which the temporary injunction is sought, and the prayer for injunction are as follows: "Plaintiff further represents to the court: That on or about the 5th day of August, 1913, the defendant J. H. Ross filed suit in forcible entry and detainer in the justice court of Galveston county, precinct No. 6, cause No. 198, on the docket of said court, wherein he complained against A. A. Kresse, of Galveston county, Tex., and sought possession of the aforesaid tract of 32 acres. That the defendant in that suit is, and was at the time of the institution of said suit for forcible entry and detainer, the tenant of this plaintiff under a lease contract of date July 15, 1913, said lease embracing the 32-acre tract herein sued for, and being for a period of 2 years from said date, and that during storing of grain and other products, and is now engaged in the business of running a dairy on said premises, and in the cultivation and use of same for agricultural purposes, especially in the growing crops for sale on the market, as well as for the use of his family and his business. That, should the said Kresse be dispossessed at this time, he would be deprived of the opportunity of running his dairy business and growing his crops before this plaintiff could recover the possession of said land in this proceeding of trespass to try title, and that this is the season of the year in which it is necessary to plow the ground and make same ready for the growing crops, all of which plaintiff's tenant would be unable to do, were he now dispossessed, so that plaintiff's tenant would suffer irreparable injury, as would this plaintiff himself, should said writ of restitution issue under the judgment in said action of forcible entry and detainer, and same therefore claim that the title to the land is in the defendant Ross, and specially deny under oath was ejected by defendants on July 1, 1913, as alleged in his petition. They aver in substance that defendant Ira Bratton was in possession of the land, holding same under a lease from the owner thereof, and, while so holding, plaintiff's tenant Kresse forcibly entered upon and took possession of a portion of said land; that said Bratton instituted a suit of forcible entry and detainer against Kresse and obtained judgment thereon, as alleged in plaintiff's petition. They specially deny that the said Bratton or the defendant Ross is insolvent, as alleged by plaintiff, and aver that Bratton is now the tenant of defendant Ross, who is the owner of said premises. should not issue, and plaintiff now calls upon the equity jurisdiction of this court for the issuance of an injunction restraining the ❘ that plaintiff was in possession thereof and said Ira Bratton and those under whom he claims from procuring or directing the issuance of a writ of restitution in said cause. "Plaintiff further represents to the court: That the said Ira Bratton is now occupying a house located on the said 32-acre tract, and is asserting some sort of claim to 5 acres immediately surrounding said house, and is thereby interfering with the possession and use of plaintiff's tenant, and that he will continue to do so unless he be enjoined therefrom by order of this honorable court. That, because of the occupancy of said house by the said Bratton, plaintiff's tenant has been compelled to occupy and live in the upper story of the barn which shelters his dairy cows, and that plaintiff is unable to deliver to him the complete possession which he agreed to do under his contract, and will be unable to do so as long as the said Bratton continues to occupy the house and five acres surrounding same, but that plaintiff has no other remedy than to appeal to the equity jurisdiction of this honorable court to issue an injunction, directing the said Ira Bratton to cease the occupancy and use of said house, and its adjoining premises, and to in no way interfere further with the possession and use of the said A. A. Kresse to said entire 32-acre tract of land because, as hereinbefore set out, plaintiff had no right to set up his title in the suit of forcible entry and detainer brought by the said Bratton against the said Kresse, and so defeat the wrongful possession of the said Bratton. "Wherefore plaintiff prays the court that an injunction issue forthwith against the said Ira Bratton, and those under whom he claims, enjoining them from procuring and directing the issuance of a writ, of restitution under the judgment in said case of forcible entry and detainer, styled Ira Bratton v. A. A. Kresse, until this case is fully determined, directing the said Ira Bratton to cease occupancy of the premises embraced within said 32-acre tract now occupied and used by him, and that he in no manner interfere with the possession and use of the said 32-acre tract by the said A. A. Kresse." This petition, which was sworn to by plaintiff, was presented to Hon. R. G. Street, judge of the district court of Galveston, on February 2, 1914. Upon consideration of the petition the judge granted a temporary restraining order enjoining the defendants from in any way disturbing or interfering with plaintiff's possession of the premises pending a hearing of the application for temporary injunction, which hearing was set for February 9, 1914. On the day set for the hearing, the defendants appeared and filed answer containing general and special exceptions to plaintiff's petition, and special denials of most of the The application was heard upon the petition and answer and supporting affidavits introduced in evidence. Upon the hearing the court refused to grant plaintiff's application for temporary injunction, and dissolved the temporary restraining order theretofore granted. From this order plaintiff appealed to this court. Upon application of plaintiff, after the jurisdiction of this court over the case had attached by reason of the appeal, we granted a temporary restraining order enjoining defendants from enforcing the forcible entry and detainer judgment pending the disposition of the appeal, but provided in said order that defendants would be granted a hearing on February 19, 1914, to show cause why the restraining order should not be continued in force until the final disposition of the appeal. On the day named the parties appeared by attorney; and, a motion to advance the hearing of the appeal having been filed in the meantime, it was agreed that hearing on appeal be set for February 26th, and the question of the power of this court to grant the temporary restraining order be submitted and heard with the appeal. No briefs have been filed by either party. On submission of the cause upon oral argument, appellees' counsel raised no question as to the power of jurisdiction of this court to grant the temporary restraining order. [1] While our Courts of Civil Appeals have no original jurisdiction to grant an injunction, whenever, in order to protect or enforce the jurisdiction of the court, it is necessary to preserve the status quo of the parties in their relation to the subject-matter of the appeal, such courts have jurisdiction to grant an injunction for that purpose. Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 712; Railway Co. v. Hornberger, 141 S. W. 311; High on Injunctions (1st Ed.) § 893. We think the issuance of the temporary restraining order was a proper exercise of the jurisdiction of this court. After fully considering the record and the authorities presented by appellant, we have |